Speedy Trial Act Strategy in White-Collar Cases (Part II)

Retro alarm clock on wooden table, vintage styleA few months ago, I wrote Part One of this series about Speedy Trial Act strategy in a white-collar criminal case. This post is going to go into a bit more detail about the pros and cons of invoking the speedy trial right.

As a very brief (and over-simplified) refresher, the Speedy Trial Act requires that a defendant’s trial begin 70 days after indictment, but there are several time periods that are excluded from this calculation.

The Pros of Invoking the Right

First, trial happens more quickly. (Hence the name of the act.) A quicker trial generally means fewer attorney’s fees. It also means the torment of being under criminal investigation will end sooner. These are not insubstantial benefits for most people.

Second, you may catch the government by surprise. In white-collar cases, the defense lawyer has often been in communications with the government for months or even years about the progress of the investigation. If you represent a company, you may have been cooperating with the government for some period (before things went south). Even if you represent an individual who is a target of the grand jury, you have participated in a reverse proffer or discussions about a possible plea deal.

Invoking your speedy trial rights will speed things up dramatically after a long investigation. Seventy days may sound like a long time, but in trial prep time, it’s the blink of an eye.

Catching the government by surprise could weaken the government’s presentation of evidence at trial. During those 70 days, the government would have to find all of its witnesses and prepare them to testify. It will have to do all of the other pretrial work, such as filing motions, selecting exhibits and dealing with the minutiae of being in the courtroom for days or weeks.

Because it bears the burden of proof, the government often has much more work to do in this regard. The defense has plenty to do as well (more later), but the initial burden falls on the government.

You can’t underestimate the power of a clean and efficient trial presentation. If the government’s witnesses are all out of order or ill-prepared for cross-examination, then it is harder for the jury to understand its theory of the case. If the exhibits are in disarray, then the government’s theory of the case could get muddled. All we need is reasonable doubt, and a disorganized trial presentation by the government can help secure it.

Third, there’s something fun about catching the government by surprise. They have had the upper hand during the investigation, and this is one of the rare times you can take a little bit of control back. Now, this isn’t a good enough reason standing alone to advise your client to invoke his speedy trial rights. Let’s just call it an enjoyable consequence.

The Cons of Invoking the Right

There are, as you might expect, quite a few downsides to invoking speedy trial rights.

First, you may not have enough time to prepare your defense. This is usually a deal-breaker. I’ve never invoked the Speedy Trial Act in any of my cases, because I’ve always needed lots of time to prepare the defense.

You need time to review discovery, find witness, and so forth. In addition, the indictment may contain charges that you hadn’t anticipated. Preparing the legal argument or the factual defense to new charges takes longer than 70 days. And if the case involves expert witnesses, preparing your expert and preparing to cross-examine the other side’s expert is a lengthy process.

Second, as we discussed in Part One of this series, the act includes many exceptions. For example, when the court is considering pretrial motions, the 70-day period is postponed. Plus, if it serves the “ends of justice,” the government can obtain a delay as well. So, even if you rush the preparation of your defense to meet the 70-day time period, the government may still get enough time to put its case together.

Third, keep in mind that the government has had months or even years to prepare its case. It has the persuasive power of FBI agents showing up on witnesses’ doorsteps to take statements. (It’s amazing how much “cooperation” happens when you have an FBI badge to “ask” for it.) The government has grand jury subpoena power to collect whatever documents it wants.

On the other hand, the defense has not had the luxury of these investigative tools. Rule 17(c) subpoenas (keep an eye out for a future post) are not nearly as helpful as grand jury subpoenas and take a while to use. Plus, until the indictment is filed, you may not know exactly what the government’s theory of the case is.

I’ve always found that downsides to invoking speedy trial rights in a white-collar case to be too risky. I need to make sure that I have enough time to review the government’s discovery, find witnesses, and prepare the legal arguments necessary to defend the cases that are lacking. To do all of that and prepare for trial in 70 days is fairly close to impossible.

If You Decide to Take the Gamble

If you want to invoke speedy trial rights, here are a few tips:

  1. Engage with the prosecutor early and try to get as detailed a reverse proper as you can. This way you can find out as much as possible about the details of the government case before indictment.
  2. Talk to potential witnesses to get their agreement to help your client and to find out what they would say at trial.
  3. Try to obtain whatever documents you can through voluntary means, such as emails or texts from witnesses, or by using statutory processes like FOIA and the Privacy Act to obtain them from government agencies.
  4. Research the legal theories thoroughly. If you know a certain charge will be in the indictment and that you have a legal defense to it, nothing stops you from drafting a few sections of the motion to dismiss in advance of indictment.
  5. Get the jury instructions ready. You need to know what the standard instructions are in your jurisdiction, if any, and start working through them element by element to develop your defense.
  6. Make sure you understand the Speedy Trial Act and its exclusions that could work to your benefit. Since filing motions can stop the 70-day clock, filing them may get you 120 days to prepare your defense. This may be enough time to prepare while still forcing the government to go to trial more quickly than it would like.

In other words, be prepared.

It is a rare white-collar case in which invoking speed trial rights makes sense. And with good reason. Catching the government by surprise could be helpful (and even fun), but it’s almost never worth sacrificing the quality of your defense to do so.

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